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MINUTES

ETHICS COMMISSION

CITY AND COUNTY OF HONOLULU

 

 

Date and Place:            April 15, 2008

                                    Standard Financial Plaza

                                    Conference Room, Suite 211

 

Present:                        Lex Smith, Chair

                                    Susan S. Heitzman, Vice Chair

                                    Matthew H. Kobayashi

                                    Wayne T. Hikida

                                    Patricia Y. Lee

                                    Charles W. Totto, Executive Director and Legal Counsel (EDLC)

                                    Matthew J. Viola (Outside Counsel)

 

Stenographer:               Norm Fisher

 

Excused:                       Cynthia M. Bond

 

I.          CALL TO ORDER

             The 413th meeting of the Ethics Commission (Commission or EC) was called to order at 11:40 p.m. by the Chair.

II.                 APPROVAL OF THE MINUTES OF THE OPEN SESSION OF THE FEBRUARY 22, 2008 MEETING

The minutes of the open meeting of February 22, 2008 were unanimously approved.

III.       OLD BUSINESS

A.        Setting the dates and times for the May and June 2008 meetings

 

            The EC scheduled the date and time for the May, 2008 meeting for May 13, 2008 at 11:30 a.m. and scheduled the date and time for the June, 2008 meeting for June 12, 2008 at 11:30 a.m. in the Standard Financial Plaza Conference Room, Suite 211. 

IV.       NEW BUSINESS

            The Executive Director and Legal Counsel (EDLC) referred to his memorandum dated April 11, 2008 regarding the following agenda items:

            A.        Administrative news

            The EDLC outlined the number of cases pending and the ethics training conducted to date in fiscal year 2008.  

            The EDLC stated that Pat Lee was sworn in as a Commissioner.

            The EDLC stated that staff will now attempt to respond to requests for advice received by the EC within 24 hours whenever practicable.

            The EDLC reported that all of the 400 plus officers and employees who are required to file financial disclosure statements have done so.

B.       Report on ethics bills before the Council and Legislature

 

            1.         Resolution 07-391.  The EDLC reported that the measure was passed by the Council, but vetoed by the Mayor.

            2.         Council Resolution 07-384.  The EDLC reported that this resolution was moved to second reading before the Council and then to the Executive Matters Committee for a review of the impact the resolution might have on collective bargaining agreements.  This measure is opposed by Hawaii Government Employees Association (HGEA).

            3.         HB 660 and SB 960.  The EDLC reported that HB 660 has been passed by the House and the Senate and will go to conference committee.  There is no opposition to the bill.

            4.         HB 3012 and SB 2937.  The EDLC reported that these bills were opposed by HGEA and have died leaving the current law in place.  As a result, it is unclear whether the Commission will be able to fine an elected officer unless the fine applies only to unlawful conduct that occurs after the official is notified to cease and/or correct the misconduct. 

The EDLC stated that staff will look at some options to redraft the law for the next legislative session that will not raise opposition form HGEA

C.        Report and recommendation regarding HPD request to have its mandatory ethics retraining conducted by HPD staff or contractors, EC No. 07-156(w)

            The EDLC reported that the Honolulu Police Department (HPD) would like the Commission's approval to have ethics retraining for its uniformed staff conducted by HPD staff and outside consultants, with input from the Commission and its staff.

            The EDLC stated that HPD would like Commission staff to continue to conduct ethics training for officers who are promoted to sergeant or lieutenant and to retrain the command staff.  This will ensure that officers know that the Commission is available to advise them or to investigate complaints.  HPD believes and staff concurs that HPD currently offers sufficient retraining as to ethical issues for police that having additional retraining by Commission staff would be redundant.

            Upon discussing the matter, the Commission approved staff's recommendation, and instructed staff to inquire whether it may also conduct a 5 to 10 minute orientation to all new HPD recruits (cadets).

 

D.        Report on the Integrity Hotline

           

            The EDLC reported the Hotline was rolled out to city departments over the last few months.  As of mid-March all city departments (except HPD and HFD which are not participating) were on board.  To date, the Hotline has had 13 incident reports submitted to the Hotline committee and these have been transmitted to the appropriate departments for follow up. 

            The EDLC stated that the Hotline committee will be establishing standards by which to measure the success of the pilot program and deciding whether to recommend its continuation and making it available to city vendors and the public.

 

V.        EXECUTIVE SESSION SUMMARY

A.        Approval of the minutes of the executive session of the February 22, 2008 meeting

            The minutes of the executive meeting of February 22, 2008 were unanimously approved.

*            *          *   

The EDLC referred to his confidential memorandum to the EC members dated April 11, 2008.
 

B.         Report regarding request to the Hawaii State Office of Information Practices as to disclosure of advisory opinions under state law

            The EDLC reported that two recent cases have raised some questions about whether an employee's right to privacy limits the Commission's ability to disclose its advisory opinion to the public, including the complainant.  Under the Uniform Information Practices Act (UIPA), an employee has an expectation of privacy in the information in his or her personnel file, unless the information relates to employment misconduct that results in suspension or termination of the employee.  

The EDLC stated that the Commission's rules require it to provide a copy of its advisory opinion to the complainant.  There is some question whether the EC may provide an unredacted copy of the advisory opinion to the complainant if the complainant will then disclose the misconduct described in the opinion.  Staff has requested that OIP advise the EC under what circumstances, if any, the Commission may provide an unredacted copy of the advisory opinion to the complainant or anyone who requests a copy.

C.       Report and request for resolution permitting subpoenas regarding the possible violation of RCH Sec. 11-102(a) and ROH Sec. 3-8.7(c) (acceptance of prohibited gifts) and ROH Sec. 11-104 (bid rigging and theft of services and supplies) by a city employee, EC No. 08-041(w)

 

            The EDLC directed the Commission's attention to a copy of a resolution allowing subpoenas to witnesses and for documents in this matter. 

            The EDLC reported that this case was referred from the Prosecutor's Office last month based on an HPD report (the Report) regarding a city employee.  During the period approximately 1998 through 2002, the city employee allegedly received gifts, including food, drink and other expenses, from a contractor to the city.  

            One of the city employee's duties was to manage outsourced contracts for janitorial and landscaping services.  The city employee allegedly selected the pool of bidders, including a company owned by the contractor and 2 businesses that traditionally made high bids.  This allegedly maximized the chances that the contractor would win the contract.  The city employee also recommended that some of contractor's contracts be extended by the department.

            The city employee would not discuss the case with police during their investigation of the contractor.  The city employee was unavailable to the Prosecutor's Office while he was on active duty with the Army Reserves from August 2004 to March 2006, when he returned to regular work for the city.

            The EDLC stated that, given the serious nature of the allegations against the city employee and the likelihood that the city employee, the contractor and other witnesses will not be forthcoming about the specific facts that could involve criminal action, staff believes some witnesses will not want to volunteer information through informal means.  Therefore, having subpoena authority through the Commission Chair early on in the case will expedite dealing with reluctant witnesses. 

            Upon discussing the matter, and reviewing the proposed resolution, the Commission moved, seconded, and unanimously carried to accept the resolution as drafted, authorizing the issuance of subpoenas to witnesses and for documents in this matter.

 

D.        Report and recommendation regarding possible violations in EC No. 05-144(w) by:

 

1.                  A city officer for violations of RCH Sec. 11-102(c) (conflict of interest between city duties and business activity) and RCH Sec. 11-104 (use of city time for personal benefit), RCH Sec. 11-104 (special treatment benefiting a city employee and his private company), and RCH Sec. 11-102(a) and ROH Sec. 3-8.7(c) (permitting a city employee to use a prohibited gift);

2.                  A city employee for violations of RCH Sec. 11-102(c) (conflict of interest between city duties and personal business activity) and RCH Sec. 11-104 (misuses of city time and facilities for personal benefit); and

3.                  A city employee for violation of RCH Sec. 11-104 (misuse of city property) or RCH Sec. 11-102(a) and ROH Sec. 3-8.7(c) (acceptance and use of a prohibited gift) and RCH Sec. 11-102(e) (receiving compensation from a non-city source for carrying out city duties)

I.        Complaint that a city officer used city paid time to conduct private services.

 

            The EDLC reported that the city officer does not dispute that she performed private business activities during her paid city work time without taking leave from the city.  However, the city officer believes that her conduct was not a misuse of city resources for her own benefit. 

            The city officer states that in 2001 she contacted a deputy Corporation Counsel about whether her private practice would continue to be allowed.  The city officer's notes of the meeting show that the deputy Corporation Counsel understood that past city officers in the department had been allowed to conduct outside business services, but there is no statement reflecting whether the issue of doing so on city time was discussed.  The deputy Corporation Counsel does not recall the discussion.

            The EDLC stated that there is some evidence that the city officer knew or should have known that doing so was unlawful.  In 1998, the city officer formed a business to bid for a contract in Hilo.  The Hawaii County Corporation Counsel wrote to then Mayor Jeremy Harris noting that the city officer was ineligible to bid for the Big Island's work because, at that time, certain city officers were prohibited by state law from having outside employment.  However, the city officer's financial disclosure statements show that the city officer did not follow the state prohibition.

            The city officer believes that she works at least 60 hours per week under normal conditions and, therefore, the city was not short-changed because of her private trips.  She also notes that she is on-call 24/7.

            Finally, the city officer posits that one reason that the department allowed her to maintain her private practice was because of the low pay relative to the same position on the Mainland.

            The EDLC stated, that after conducting the initial investigation, staff believes that this is a case where there is sufficient information to find probable cause of a violation and transmit a Notice of Possible Violation of the Standards of Conduct (NOPV) (RCH Sections 11-104 and 11-102(c)) to the city employee. 

            Upon discussing the matter, the Commission moved, seconded, and unanimously carried to accept staff's recommendation to transmit an NOPV to the city employee.

II.      Complaint that a city officer gave favorable treatment to a city employee and his company

           The complaint alleges that the city employee and his company have been treated favorably by the city officer and the city employee in his position as a city employee in the following ways: (a) the city officer did not penalize the city employee and his company when they failed to meet the time period under the contract and failed to aid the investigators as required under the contract; (b) the city employee and his company were given competitive advantages by the city officer not available to other companies; and (c) the department facilities were used for the city employee and his company's benefit. 

A.              Violations of the contracts

           The EDLC stated that the investigation found no information showing favorable treatment or other violations regarding the city employee's company's contract.  Staff recommends a finding of insufficient evidence to find probable cause of a violation of RCH Sec. 11-104 or 11-102(c) by the city officer and the city employee.

           Upon discussing the matter, and reviewing the files, the Commission moved, seconded, and unanimously carried to accept staff's recommendation finding insufficient evidence to find probable cause of a violation of RCH Sections 11-104 or 11-102(c) by the city officer and the city employee.

B.             Competitive advantages for the city employee and his company

            The EDLC stated that staff's investigation found possible ethics violations resulting from the city employee and his company performing activities at times when other companies were restricted from performing the same activities.  This conclusion is based on statements by a competitor's employee and complainant.

            Upon discussing the matter, the Commission moved, seconded, and unanimously carried to accept staff's recommendation to transmit an NOPV to the city officer and the city employee.

C.              Use of department facilities for city employee's and his company's benefit

            The EDLC reported that several credible witnesses, as well as the city officer and the city employee, described the fact that the city employee stored furnishings, and other materials collected by or used in the city employee's business at the city employee's department.  The dispute is the degree to which this was done and how long the private property was left in the department.       Upon discussing the matter, the Commission moved, seconded, and unanimously carried to accept staff's recommendation to transmit an NOPV to the city officer and the city employee.

 

III.       Complaint that outside contractors are contracted to cover the city officer while she is conducting her non-city business

 

            The EDLC reported that, on occasion, the department hires contractors to help with the city officer's responsibilities.  There was a concern that the contractors were used to handle the work load when the city officer was performing private work.  However, there was no significant match between the dates when the contractors were hired and the dates when the city officer performed private work.  The EC concluded that there is insufficient evidence to find probable cause of a misuse of city resources by the city officer.

IV.       Requests for personal investigations to the department and HPD staff by the city officer

            The city officer admits that she asked the complainant and HPD to perform a personal investigation for the city officer.  Complainant states that she was ordered to give high priority to identifying an individual for the city officer during city work time and used department computer programs to locate her.  The city officer states that she asked complainant and an HPD employee to help her as friends, not as city employees, at an extremely emotionally difficult time in her life. 

The EDLC stated that another city employee in the department also stated that the city officer asked her to find a picture of an individual from the department's computer resources, but was unable to do so. 

The EDLC stated that the use of city resources for personal purposes is generally considered a violation of RCH Sec. 11-104 for which an NOPV may issue.

            Upon discussing the matter, the Commission moved, seconded, and unanimously carried to accept staff's recommendation to transmit an NOPV to the city officer.

V.                 Payments from an institution for training non-city employees

The EDLC reported that for several years, the department has taken city paid work time to train University of Hawaii students.  The training occurs at the city department, and the city officer is paid between $5,000 and $10,000 for her time and she does not take leave from the city while conducting the training.  The city is not paid for use of the facilities.

The EDLC stated that use of the department's facilities for a non-city purpose may be considered a misuse of city resources and a violation of RCH Sec. 11-104.  The Commission has an exception to the general rule whereby, if the Mayor determines that a non-profit or charitable event is a project with a community-wide interest, city resources may be used to support the event.  However, the payment from another source to city personnel for their work on a project of community-wide benefit is not contemplated within the policy exception. 

The EDLC stated that an NOPV regarding the ostensible misuse of city resources for the personal benefit of the city officer in violation of RCH Sections. 11-104 and 11-102(c) should be issued.

            Upon discussing the matter, the Commission moved, seconded, and unanimously carried to accept staff's recommendation to transmit an NOPV to the city officer.

            VI.       Use of $1000 by a city employee with approval by the city officer

 

            In 2003 a city employee received an envelope containing $1000 cash as a gift.  The city employee asked the city officer what to do with the money and the city officer told the city employee to put the gift in the department's safe and await the request for the money's return.  No request came and, when the city employee's father died in 2004, she used the $1000 to defray costs to attend his funeral on the Mainland. The city officer knew that the city employee used the money in this way, but did not request or require her to reimburse the city.

            The EDLC stated that there is sufficient evidence to support a finding of probable cause that the $1000 was either (1) a gift prohibited under the gift laws, (2) receipt of compensation from a non-city source contrary to RCH Sec. 11-102(d), or (3) the cash had become property belonging to the city and the use for personal reasons was a violation of RCH Sec. 11-104. Therefore, an NOPV should be issued to the city employee.

            Upon discussing the matter, the Commission moved, seconded, and unanimously carried to accept staff's recommendation to transmit an NOPV to the city employee.

            The EDLC stated that the city officer admitted in her interview that she did not request the money be repaid to the city even though she knew it was improper for the city employee to use the $1000.  Therefore, staff believes that in light of the failure to properly supervise the city employee, an NOPV to the city officer is warranted for her permitting the city officer to use city property for her personal benefit contrary to RCH Sec. 11-104.

            Upon discussing the matter, the Commission moved, seconded, and unanimously carried to accept staff's recommendation to transmit an NOPV to the city officer.

VI.       ADJOURNMENT

            The EC moved, seconded, and unanimously carried to adjourn the meeting.  The meeting was adjourned at 12:20 p.m.

 

Last Reviewed: Monday, November 08, 2010